Chief Executive Officer, Department for Child Protection v B (a child)

[2008] WASC 174

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION:   CHIEF EXECUTIVE OFFICER, DEPARTMENT FOR CHILD PROTECTION -v- B (a child) [2008] WASC 174

CORAM:   McKECHNIE J

HEARD:   4 AUGUST 2008

DELIVERED          :   4 AUGUST 2008

FILE NO/S:   SJA 1043 of 2008

BETWEEN:   CHIEF EXECUTIVE OFFICER, DEPARTMENT FOR CHILD PROTECTION

Appellant

AND

B (a child)
First Respondent

G (a child)
Second Respondent

ON APPEAL FROM:

Jurisdiction              :  CHILDREN'S COURT OF WESTERN AUSTRALIA

Coram  :MAGISTRATE D POTTER

File No  :CL 3166 of 2008, CL 3167 of 2008, CL 3168 of 2008

Catchwords:

Child protection - Necessary for a report before an interim placement

Legislation:

Children and Community Services Act 2004 (WA), s 133

Result:

Appeal allowed
Matter remitted to Children's Court

Category:    B

Representation:

Counsel:

Appellant:     Ms S A Walker

First Respondent           :     Ms D W A MacLean

Second Respondent      :     No appearance

Solicitors:

Appellant:     Department for Child Protection

First Respondent           :     Jeffrey Paul S Gore

Second Respondent      :     No appearance

Case(s) referred to in judgment(s):

Nil

1. McKECHNIE J:  This appeal turns on a short point of construction.  The Children and Community Services Act 2004 (WA) gives the Children's Court power to adjourn proceedings and make interim orders under pt 5 div 1. Under s 133(2) the Court is given power to make an interim order in certain circumstances. S 133(2)(c) provides:

   [T]hat the child is to be placed with a person approved by the Court following a report, whether oral or written.

2. On 23 May 2008, the Magistrate purported to make an interim order placing the children in the care of their grandparents. The Magistrate took evidence from the grandmother and father, following which the Magistrate expressed satisfaction about each of them. The Magistrate did not have a report from the CEO as to the grandparents' suitability. The plain meaning of s 133(2)(c) is that there is no power to place a child with a person approved by the court until a report, whether oral or written, has been received, and to that extent the Magistrate acted without jurisdiction in making the order.

3. At the appeal the question was raised, although in fairness it must be said raised rather than strongly pressed by counsel for the first respondent, Mr MacLean, as to the jurisdiction of this Court to make orders of this nature. In my opinion, the jurisdiction does arise under s 42 of the Children's Court of Western Australia Act 1988 (WA) because a finding, order or decision may be the subject of appeal. I consider an interim order is an order, so the appeal should be allowed and the matter remitted as soon as possible back to the Children's Court to be further dealt with.